Yu v Bradley - [2021] NZHC 1717

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1125

[2021] NZHC 1717

BETWEEN
JING JUN YU

First Applicant

AND

ANDREW INVESTMENTS (2004) LIMITED

Second Applicant

AND

DALE GORDON BRADLEY AND JILLIAN ANNE BRADLEY

Respondents

Hearing: On the papers

Appearances:

LR Taylor QC and EJ Watt for the Applicants JWH Little and JK Grimmer for the Respondents

Judgment:

9 July 2021

JUDGMENT OF FITZGERALD J

[As to costs]

This judgment was delivered by me on 9 July 2021 at 3.30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date…………………………

Solicitors: Carson Fox Legal, Auckland

Powle & Hodson, Auckland

To:L Taylor QC, Auckland E Watt, Auckland
J Little, Auckland
H Lanham, Auckland J Grimmer, Auckland

YU v BRADLEY [2021] NZHC 1717 [9 July 2021]

Introduction

[1] By a judgment delivered on 17 May 2021, I granted the applicants’1 application for a stay of the Judgment Sum in this matter, but only as to approximately one-third of the amount. The remaining two-thirds was accordingly payable to the respondents2 (and has since been paid).

[2] At the conclusion of my judgment, I encouraged the parties to agree the costs of the stay application. They have been unable to do so. The issue centres on who was the “successful party” on the application.

Background

[3] The dispute between the parties arose out of a real estate transaction. It was the subject of a four day trial before Palmer J.3 The Bradleys were successful at trial and Palmer J’s judgment was sealed with a Judgment Sum of $449,639.85. This comprised the principal sum found to be owing by Mr Yu to the Bradleys, pre- judgment interest and costs.

[4] Mr Yu has since appealed Palmer J’s judgment to the Court of Appeal. A hearing before the Permanent Court is to take place in October this year. It is unknown when the Court will deliver judgment on the appeal, but it is realistic to expect that it could be in the first part of 2022.

[5] Mr Yu was concerned at paying the Judgment Sum to the Bradleys pending determination of his appeal, given his position that there is a real risk the Bradleys will be unable to repay it if his appeal is successful. He did, however, deposit the full Judgment Sum into his solicitor’s trust account, where he agreed it would be held pending the outcome of the appeal.

[6] The Bradleys, however, sought immediate payment of the full Judgment Sum, including on the basis that it was required by them to meet debts owed by Mr Bradley

1      I will refer to the applicants as Mr Yu.
2      I will refer to the respondents as the Bradleys.
3      Yu v Bradley [2020] NZHC 1822, (2020) 21 NZCPR 220.

and to pay down some of the mortgage on their residential property. They submitted that there was more than enough equity in the home to ensure they would be in a position…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yu v Bradley

Details

AGLC: Yu v Bradley [2021] NZHC 1717
Case: [2021] NZHC 1717
Decision Date: 9 July 2021

CaseChat Overview and Summary

The case of Yu v Bradley involved a real estate dispute that culminated in a stay application regarding the payment of a Judgment Sum. Jing Jun Yu and Andrew Investments (2004) Limited, the applicants, sought a stay of the Judgment Sum pending an appeal against the original judgment, which was awarded to Dale Gordon Bradley and Jillian Anne Bradley, the respondents. The High Court of New Zealand heard the matter on the papers and delivered a judgment on 9 July 2021. The primary legal issue before the court was determining who bore the costs of the stay application, given that the applicants' stay application was only partially successful. The respondents argued that they were the successful party overall, while the applicants maintained that they were successful on their stay application and that costs should lie where they fell.

The court considered the nature of the stay application and the principle that a successful party is entitled to an award of costs, even if the success was limited. The court referenced established case law, including Weaver v Auckland Council and Shirley v Wairarapa District Health Board, which held that success on more limited terms is still success and that the loser and only the loser pays, unless there are exceptional reasons. The court also noted the Supreme Court's statement in Shirley that the unsuccessful party pays unless there are exceptional reasons and that the Court has discretion to refuse to award costs or reduce costs if the successful party has failed in relation to a cause of action or issue which significantly increased the opposing party's costs. The court found that Mr Yu's application for a stay was not unreasonable, given it was partially successful, and he had taken steps to confirm his willingness and ability to pay the Judgment Sum. The court held that it would be unprincipled to award costs in favour of the respondents and made an order that the costs of the stay application were to lie where they fell.

Orders